This term the Supreme Court will once again address the constitutionality of affirmative action policies in university admissions decisions when it considers the case of Schuette v. Coalition to Defend Affirmative Action.

At the end of the last term, the Court decided Fisher v. University of Texas at Austin, which deferred substantive action on this issue. Although the Court had granted certiorari in Fisher to address whether the Equal Protection Clause permitted the University of Texas at Austin’s use of race in undergraduate admissions decisions, the Court ultimately made the narrow ruling that the Fifth Circuit below had failed to apply the correct standard of strict scrutiny in affirming the district court’s ruling that the University had not violated the Constitution. The Court took a considerable amount of time before issuing its opinion in Fisher – the parties argued the case on October 10, 2012, but it wasn’t decided until June 26. This suggests that, despite the fact that it was a 7-1 decision with Justice Kagan having recused herself, the Court is struggling with affirmative action at public universities.

Schuette comes at the issue from a different angle. Instead of asking if a public university may consider race in its admissions decisions, Schuette questions whether an amendment to the Michigan Constitution violated the Equal Protection Clause by prohibiting public colleges and universities from discriminating against, or granting preferential treatment to, anyone on the basis of race, sex, color, ethnicity, or national origin. The Court of Appeals for the Sixth Circuit held that it did. Relying on the so-called political-restructuring theory of equal protection, the court said the amendment, which was adopted through a ballot initiative, targeted a program that primarily benefited racial minorities and also reordered the political process in Michigan in a way that placed special burdens on racial minorities.

The State of Michigan asserts that the voter-approved amendment did not run afoul of the political-restructuring theory because the amendment put an end to policies requiring racial preferences. If the two cases underlying that theory, Hunter v. Erickson and Washington v. Seattle Sch. Dist., shield preferences or unequal treatment, then the State argues the Court should overrule them. The State also noted that in the 2003 case of Grutter v. Bollinger, the Court had suggested that there be a 25-year window for allowing race-conscious admissions programs in higher education, during which the states would experiment with race-neutral alternatives for achieving classroom diversity.

About the Author

Senior Attorney Editor, Thomson Reuters

Michael Ross is a senior attorney editor who started working at Thomson Reuters in 2006, on his birthday. Michael is a graduate of the University of Minnesota Law School. He previously clerked for United States Magistrate Judge E.S. Swearingen and worked for a small law firm in Minneapolis that practiced primarily in the area of water resources law.